Some of the most important developments at today's FCC Open Meeting were not the proceedings addressed but the staffing changes announced. Chairman Kevin Martin unveiled several solid appointments to some of the busiest parts of the agency including: Chief of Staff Dan Gonzalez, Legal Advisor Michelle Carey, Consumer Bureau Chief Monica Desai, Enforcement Bureau Chief Kris Monteith and Wireline Bureau Chief Tom Navin. These are veterans who know their way around the FCC and who understand deeply the complex issues the agency faces, particularly with respect to critical issues such as broadband, voice over IP and universal service. They also are some of my favorite people at the Commission. As a former colleague, I couldn't be happier for them.

It's not often that the cable industry can count on help from Lawrence Lessig regarding "network neutrality" -- the question of whether cable modem and other broadband service providers should permit Internet users to access the content, applications and devices of their choice. And yet, Lessig appears to have conceded an argument on which cable may rely to resist regulation if the FCC wins the Brand X case in the Supreme Court. That case ultimately will decide whether the agency can classify cable modem service as a largely unregulated "information service" under the Communications Act. Lessig's concession, however, may not be enough to keep the FCC from enforcing net neutrality even if the Court hands the agency a victory.

"Clear Channel to Dismantle Media Empire." That's the headline from pg. B1 of today's Wall Street Journal. In the article, Sarah McBride reports that the media giant plans to spinoff its entertainment division "in the latest example of a media company deconstructing an empire built during the late 1990s."

As I've noted in previous posts, media deconsolidation is all the rage these days. The list of high-profile media divestitures and divorces continues to grow: AOL-Time Warner, Disney-Miramax, Cablevision, Viacom, Liberty Media, Sony, and on and on. They all have been pondering or carrying out major spin-offs or restructuring plans in recent months. As McBride reports in the Journal today, "Clear Channel is following a media-industry trend of deconsolidation that has picked up steam recently."

Patrick's post on the DTV "transition," occassions some musings on the outline of a deal to get this spectrum into use. For consumers, for the competitive process, for the growth of broadband wireless technologies, it is absolutely indispensable that this spectrum be put into better use than (unwatched) digital television transmissions.

It is a classic public choice problem: a concentrated group of beneficiaries with low use-value but high transfer-value (the broadcasters) holding out against a diffuse group of would-be winners --consumers and companies that will flourish with more broadband pipes. In this fight, the addition of the High Tech DTV coalition is welcome.

Former FCC Media Bureau Chief Ken Ferree once said of broadcasters and the spectrum they're supposed to release after the DTV transition that "they'd rather eat their children than give up this spectrum." Well, for the sake of all of those little tykes I hope Ferree's prediction doesn't come true, because the pressure is rising to free up that spectrum.

The High Tech DTV Coalition, launched today, is urging an early, hard deadline for release of the 700 MHz band spectrum. Executive Director Janice Obuchowski and her colleagues wrote leaders on Capitol Hill Tuesday arguing this point:

Certainty will allow the U.S. high-tech industry to secure the investment and develop the business plans required to deploy wireless broadband services in the 700 MHz band. This, in turn, will bring greater inter-modal competition among providers of multiple types of network technology, accelerating broadband build-out and lowering consumer prices.

Conservative legal heavyweights John Engler, C. Boyden Gray and Kenneth Starr weigh in on the future of state utility commissions at National Review Online today.

Their conclusion: "So, yes, there is role for vibrant federalism in the new telecom world. But it is a very different role than before. The old natural monopoly required economic oversight from guardians of the public interest. Today regulators need a keen eye for government-imposed barriers that can be swept away, so that technology and competition can bring consumers the ever greater wonders of the telecommunications revolution. Lowering regulatory barriers to investment and competition is not an abandonment of the states' role, but a leadership strategy that will benefit everyone."

The essay is addressed to folks on the Hill who will meet in committee today. While I may quibble with their easy use of phrases like "guardians of the public interest," these men have put out a challenge to lawmakers everywhere and it will be interesting to watch who takes it up. The House hearing can be streamed from this page.

Will A Wireless Ratings Scheme Be Enough to Head Off Cellphone Censorship?

As I've mentioned in previous posts (here and here), the potential for cell phone content regulation is something worth monitoring. There have been some rumblings in Washington already about the need for the wireless industry to take steps to shield children from potentially objectionable material even before it hits the market. And you'd have to be a fool not to realize that at some point very soon, technological & media convergence is going to bring adult-oriented fare to mobile devices. The question is, once that happens, will regulatory convergence follow technological convergence? More specifically, will broadcast TV and radio "indecency" controls be imposed on wireless content in coming years?

There's a crowd of people out there who still think that nothing has changed in our modern media world. They think that the same old newspapers, television, and radio outlets that dominated the media marketplace 30 years ago are still the only media outlets of importance today.

For example, Farhad Manjoo of Salon claims that "it's hard to find anyone in the media world... who can furnish proof that new technologies are shaking the foundations beneath entrenched media giants. If anything, the Web and cable and satellite have expanded the reach of media conglomerates." Using similar conspiratorial rhetoric, FCC Commissioner Michael Copps argues that "those who believe the Internet alone will save us from this fate should realize that the dominating Internet news sources are controlled by the same media giants who control radio, TV, newspapers, and cable." And the ever-pessimistic Mark Cooper of the Consumers Federation of America has complained that "the Internet has not lived up to its hope or hype. It has become more of an extension of two dominant, 20th century communications media [television and telephony] than a revolutionary new 21st century technology."

To these critics, left me just respectfully say, get a grip! Wake up and take a whiff of reality because the media world has already changed in amazing ways and the Internet and cyberspace ARE shaking the foundations of traditional media.

New PFF Analysis of S. 616, the "Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005"

PFF has just released my new PFF paper on the rising threat of cable and satellite censorship. In the paper, I provide a section-by-section analysis of the leading pro-censorship measure, S. 616, the "Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005." My analysis of the bill can be summarized as follows:

* Section 2's pervasiveness rationale has never been applied to newspapers and the Internet, and would be constitutionally suspect for cable and satellite.

* Sections 4, 7 and 8 would impose mandates on warning systems and filters deployed voluntarily by programmers. These efforts might best be grouped under the theme 'hanging the industry with its own rope.' Ratings systems are subjective, and government shouldn't have any say over them.

* Section 5's significant fines would carry the "clear as mud" indecency enforcement to cable and satellite, expanding the current confusion on what is appropriate.

* Section 6 would potentially abrogate contracts between national networks and their TV affiliates by forcing networks to expand veto power over programming, despite the fact that local affiliates already have significant influence.

* Section 10's proposal of a return of a "voluntary" code of conduct seems far from voluntary, with an implicit "or else" attached.

* Section 11 would exempt premium and pay-per-view channels, but what happens if S-616 forces popular content onto these networks and viewers follow? Would they then be regulated as well?

Please read the paper for more details. While the entire bill may not pass, given the atmosphere on the Hill and at the FCC today, portions of S. 616 could easily become law in coming months and years.

As the debate over spyware continues to make waves in Congress, many states are also taking action to curb the incidence of the pernicious software. Yesterday, the Alaska State Senate passed a bill to put a ban on spyware. The Alaska bill, which appears to focus more on the adware aspects of spyware, including pop-up ads, adds a section to the state's current laws on unfair trade and business practices to include spyware. While this law is unlikely to have an adverse impact on the legitimate software market, it reintroduces the question of whether or not states should be legislating on this issue. The spyware issue is one that cannot be reasonably corrected at the federal level, due to its medium, the Internet, and thus its global nature, not to mention the difficulty in tracking spyware purveyors. These factors make it even less likely that state legislation will have a positive impact.

As stated previously in this space, federal legislation on spyware is a cause for alarm, based on the vague definition of spyware and implications such legislation could have on legitimate software and innovation, yet it may prove to be a necessary evil to thwart state legislation from running rampant and hurting interstate commerce as well as innovation in the software industry and the Internet as a whole. The task at hand then becomes choosing the appropriate legislation that will not only maximize positive benefits, but equally as important, limit the potential negative effects of regulation.